When Courts Compete for ‘Business,’ Liberty Wins

Amauri Henderick/FlickrConsidering that what liberty we continue to enjoy in the West is a product in large part of competing legal institutions operating within overlapping jurisdictions hundreds of years ago, it’s curious that so many libertarians still believe such an order—an essential feature of free-market, or natural-law, anarchism—would be inimical to liberty. Why wouldn’t that which produced liberty be up to preserving it?

When I say that competition produced liberty, I of course do not mean that liberty was anyone’s objective. Yet liberty emerged all the same, as if by an “invisible hand.” That’s how things often work. Good (and bad) consequences can be the result of human action but not of human design (to use a favorite phrase of F. A. Hayek’s, which he borrowed from the Scottish Enlightenment thinker Adam Ferguson).

We should be delighted to know that something so wonderful as liberty can emerge unintentionally. It should give us hope for the future; if the libertarian movement is deficient, we need not assume that liberty has no chance. (I have more to say about liberty as an unintended consequence in the context of Magna Carta here.)

Many authors from the 18th century onward have written about the unintended good consequences of competition, i.e., the absence of central control. They emphasized that in the West the rivalries between church and state, between nobles or parliament and crown, and between nation-states yielded zones of liberty that endure to this day, however diminished in particular matters. Competition among legal institutions—courts and bodies of law—within overlapping jurisdictions played a large role in this centuries-long beneficent process. These of course are not examples of anarchism; on the contrary, states existed. But competitive overlapping legal regimes are an element of market anarchism. So where a state coexisted with a polycentric legal order, we may say, with Bryan Caplan, that there existed “less than the minimum” state, that is, something that fell short of the nightwatchman state favored by limited-government libertarians.

A good place to read about competition in law and dispute resolution is Todd J. Zywicki’s highly accessible Northwestern